And speaking of annulments…

Rome has its own "redish" gathering - not a mass though: the Roman Rota meets with Pope Benedict on January 21

A reader of the blog has drawn to my attention that the Holy Father addressed the Roman Rota on January 21st, and that in his speech he used the phrase “sentire cum ecclesia”. The Roman Rota is, of course (inter alia), the last court of appeal for marriage annulment cases in the Catholic Church, and so it has some connection with the dispute that was going on in the combox under the previous page.

The passage in which he uses the phrase which forms the title of this blog is this:

It follows that interpretation of canon law must occur in the Church. It is not a question of a mere external, environmental circumstance: it is a return to the very “humus” of canon law and the realities it regulates. The dictum “sentire cum Ecclesiae” (thinking or feeling with the Church) is also relevant to disciplinary matters by reason of the doctrinal foundations that are always present and at work in the Church’s legal norms. In this way, there must also be applied to canon law that hermeneutic of renewal in continuity, of which I spoke in reference to Vatican II, which is so closely connected to current canonical legislation. Christian maturity leads one to an ever greater love of the law and a desire that it be faithfully applied.

The whole speech is very interesting from a number of angles – including its place in the future of what will become known (I am sure) as Benedict’s “Hermeneutic of Reform vs. Hermeneutic of Discontinuity” speeches. He uses a variant of that phrase above (“hermeneutic of renewal in continuity” – thus combining both thoughts in the same phrase, something I have not seen him do before).

The basic idea of the speech, as I see it, is that the process of applying Canon Law is not just about applying “the letter of the law” (to swipe a phrase from St Paul), which is what secular lawyers do, always looking for a “loophole” that will enable the outcome the client desires, but rather an activity of faith itself. Again, while he is at it, Pope Benedict picks up the old liturgical adage “lex orandi lex credendi” and modifies it to make it applicable to the exercise of Canon Law: “Lex agendi” (the law of practice) “lex credendi” (the law of faith or believing). I am not quite sure that the translation in Zenit (to which I have linked above – I don’t think this speech is on the Vatican website yet) does justice to the point that the Pope is trying to make. I haven’t read the original but the translation says:

The connection with the topic that I have mentioned — the right interpretation of faith — is not to be reduced to a mere semantic agreement given that canon law has in the truths of faith its foundation and its meaning, and that the “lex agendi” (rule of acting) cannot but reflect the “lex credendi” (rule of believing).

I think the point is that given that canon law has the truths of faith as its foundation and its meaning, one cannot reduce the application of canon law to “mere semantics”. Now, I know that in the combox to the previous post, Gareth was arguing that the fault in relation to the exercise of assessing annulment cases is with Canon Law itself, but it seems that Pope Benedict is saying that things will be vastly improved if canon lawyers interpret and apply Canon Law itself according to the “lex credendi” and not just according to the “mere semantic” meaning of the letter of the law. “The letter kills, but the Spirit gives life”, as St Paul said.

The Pope says:

In recent times some currents of thought have warned against excessive attachment to the Church’s laws, beginning with the Codices, regarding it as a manifestation of legalism. Consequently, there have been proposals for hermeneutic approaches that are more in keeping with the theological bases and also the pastoral intention of the canonical norm, leading to juridical creativity in which the individual situation becomes the decisive factor for grasping the authentic meaning of the legal precept in the concrete case.

Now I don’t think the Pope has any problem with the lawyers applying the law in keeping with “the pastoral intention of the canonical norm” – after all, the very last of the laws in the Code states that “the salvation of souls is the supreme law in the Church” – never the less, it does seem that he has a bone to pick with those who might employ “juridical creativity” in using a kind of situational ethics according to individual cases. This is in fact a kind of “positivism”:

itself to replacing the one positivism with another in which the human interpretive work comes to prominence as the protagonist in determining what is lawful. There is a lack of a sense of an objective law to be discovered since it is subjected to considerations that pretend to be theological and pastoral, but that are, in the end, exposed to the danger of arbitrariness.

So he isn’t speaking against the objectivity of the law when he warns against excessive attention to “mere semantics”. He explains this in reference to his Reichstag speech:

As I wished to explain at my country’s Federal Parliament, in the Reichstag in Berlin, true law is inseparable from justice. Obviously the principle also holds for canon law in the sense that it cannot be shut up in a merely human normative system but must be connected to a just order of the Church in which a superior law reigns.

And this is where he comes back to the saying “Sentire cum Ecclesia”:

In this realistic perspective, the interpretive work, which is occasionally arduous, acquires a meaning and a direction. The use of the interpretive methods foreseen by the Code of Canon Law in canon 17, beginning with “the proper meaning of the words considered in their text and context,” is no longer a mere logical exercise. It is a matter of a task that is enlivened by an authentic contact with the whole reality of the Church, that seeks to penetrate the true meaning of the letter of the law. Something occurs that is similar to what I have said about the interior process of St. Augustine in biblical hermeneutics: “transcending the letter made the letter itself credible.”

There is much more in this very important speech, which I think will give canon lawyers the world over much to think about, but I do hope that we can see here the right way to regard the role of our Tribunals in the Church. It is not their role, nor, it seems, even the Pope’s intention, to hold the letter of the law up for question. Nor is the way out a kind of “pastoral” (read “creative”) application of the law. Rather, it is always to apply the law with the heart of faith, of The Faith, to do faithfully what the Church intends by its laws, for the sake of true justice.

About Schütz

I am Catholic, married to Cathy, father of Maddy & Mia. Since 2002, I have been the Executive Officer of the Ecumenical & Interfaith Commission of the Archdiocese of Melbourne. I was once a Lutheran pastor, but a "year of grace" and soul-searching led me into the Catholic Church. It was a bumpy ride, but with the support of my (still Lutheran) wife, I was finally confirmed on June 16, 2003.

12 Responses to And speaking of annulments…

Now, I know that in the combox to the previous post, Gareth was arguing that the fault in relation to the exercise of assessing annulment cases is with Canon Law itself, but it seems that Pope Benedict is saying that things will be vastly improved if canon lawyers interpret and apply Canon Law itself according to the “lex credendi” and not just according to the “mere semantic” meaning of the letter of the law.

Well, it depends on what you mean by “vastly improved”.

Isn’t it the case that, the “higher” our theology and concept of marriage, and the more we import it into canonical practice, then the more likely it is that the gritty reality of human relationships will be found to fall short of the essential ideal of marriage, and so the more ready we will be to find that no true marriage subsists?

The Catholic church’s canon law comes – unsurprisingly – from the roman legal tradition – a tradition which also provides fundamental legal concepts to much of Europe. And one of the criticisms of the Roman tradition has always been that it focuses a great deal on form, procedure, appearance. Thus in classical Roman times particular rituals were prescribed to achieve particular legal effects – there was a ritual to be observed when a boy reached manhood, and until it was observed he remained, legally, a boy. There was a ritual for adoption. There was a ritual for the manumission of a slave. And so forth. These rituals were not convenient markers; they were essential. Your intention to (say) manumit your slaves, or your promise to do so, were mere precursors to the ritual; they explained why you embarked upon the ritual, but it was the ritual itself which manumitted them. The common law tradition, which we in Australia have inherited from England, was (in the view of common lawyers) less focussed on form and procedure, and more on intent and substance.

We can see this emphasis illustrated in relation to, say, the sacrament of baptism. Valid celebration of the sacrament does require the right intention, but quite a vague, unfocussed intention will do – it is enough to baptise with the intent of “doing what the church does” in baptism, even if you have only the haziest idea what that is. But the sacramental form required is very specific – you must baptise with the appropriate Trinitarian formula, mentioning the Father, and the Son, and the Spirit, by those names, and if you don’t do this the baptism is not valid, regardless of how clear, and how orthodox, your baptismal intention may be.

And I think the same thing is at work in the canonical attitude to marriage. There’s a presumption of validity arising out of the form; if a marriage ceremony has been celebrated, there’s a strong presumption of a valid marriage. It can be rebutted but, in the past, this was extremely difficult, except by invoking objections also grounded in matters of form – another previously celebrated marriage ceremony with a different spouse, or want of canonical form in the marriage ceremony being challenged.

The change that Gareth regrets is, I think, an increased willingness to have the presumption rebutted not by objections of form, but by objections of capacity or intention. And these objections mostly appeal to our theological conceptions of what marriage is, and what it requires of us. In other words, our application of the canon law is being shaped, to a greater extent than before, by what we believe about marriage. Which seems to me to be what the pope is calling for. And the result is more annulments.

Of course that’s not true of annulments granted for want of canonical form. But these do not arise from a search for loopholes, or from the “mere semantic” meaning of the letter of the law. Canon law states absolutely unambiguously that such marriages are invalid; there isn’t a great deal that canon lawyers can do here except grant annulments speedily whenever they are sought. If that doesn’t reflect what we believe about marriage the remedy lies not with the canon lawyers but with the canon legislator. And we know who that is.

You do also realise that a good lot of annulnment cases (particular lack of form types) granted in western societies today such as Australia wouldnt even make it through the door yesteryear due to the fact that a pretty good case had to be put forward for the granting of a civil divorce to begin with.

In this sense a lot has to also have to be said about Marriage tribunals taking advantage of secular no-fault divorce laws.

It was not always the case that an applicant for an annulment had to get a civil divorce first. In particular, when civil divorce was fault based (cruelty, adultery, desertion, wilful neglect occuring after the marriage) while the annulment procedure was heavily focussed on defects of form the time of the marriage) the grounds for annulment and the grounds for civil divorce rarely coincided. The tribunals recognised this, and the failure to have obtained (or have sought) a civil divorce was not grounds for rejecting a nullity petition. What the tribunals required was that the party seeking the annulment show that proper material, etc, provision was made for the spouse and for any children of the putative marriage, but this didn’t have to be in the form of a financial settlement ordered in the context of a divorce.

“The Catholic church’s canon law comes – unsurprisingly – from the roman legal tradition – a tradition which also provides fundamental legal concepts to much of Europe.”

This may be historically and demonstrably so, Perry, but Pope Benedict seems to want to argue that the true soil, the humus, of Canon Law is the Catholic Faith, rather than some secular form of law. You can argue with that, sure, but that’s what the Pope is saying.

And I don’t think we are talking about “idealism” here. Marriages – true valid marriages – have been contracted since time immemorial by most people who attempted it. You have to admit, however, that in the last 50 years we have seen three things absolutely unprecedented in human history: an incidence of divorce as high as one third of the marriage rate, the use of contraception to sever the connection between marriage and children, and the attempt to redefine marriage so that it can describe a contract between people of the same sex. This points to something going seriously and wackily wrong somewhere. The fact that these three historical anomalies have occured simultaneously with an unprecedented rise in the granting of annulments by the Catholic Church cannot be mere coincidence. It must either stem from (1) an increased liberalisation of the Church’s teaching and Canon Law (Gareth’s position), or (2) a direct consequence of the breakdown in the understanding of the true nature of marriage, which makes the contracting of valid marriages much more difficult (my argument).

“This may be historically and demonstrably so, Perry, but Pope Benedict seems to want to argue that the true soil, the humus, of Canon Law is the Catholic Faith, rather than some secular form of law. You can argue with that, sure, but that’s what the Pope is saying.”

That is what the pope is saying and I certainly wouldn’t argue with it. I think if there is a focus on form in canon law, that’s a historical accretion, and what the pope is urging is a ressourcement; a return to the foundations which were there before the accretion and are still there under it.

My point, though, is that the developments that Gareth laments are very much in tune with what the pope is urging. In determining whether a putative marriage is a true marriage, we look at what marriage is and what it demands, rather than simply how it is celebrated. Sacramentally, this must be right.

“. . . The fact that these three historical anomalies have occured simultaneously with an unprecedented rise in the granting of annulments by the Catholic Church cannot be mere coincidence. It must either stem from (1) an increased liberalisation of the Church’s teaching and Canon Law (Gareth’s position), or (2) a direct consequence of the breakdown in the understanding of the true nature of marriage, which makes the contracting of valid marriages much more difficult (my argument).”

Well, I take your point, but the alternative you present is a bit of an oversimplification, isn’t it? There’s no necessary “either”; both of these factors could be at work, and indeed other factors which you do not identify could be at work.

I’m going to suggest that a number of long-term trends are coming together here.

– The rise in the idea (and the ideal) of companionate marriage, in the sense of the idea that your spouse should also your closest friend. It’s a romantic ideal, obviously, and we take it for granted – marriage is about intimacy, sharing, emotional openness, etc. But it’s actually quite a recent idea – maybe two hundred years old? As late as, say, the seventeenth century, neither men nor women expected to find intimate friendship in marriage. A man was expected to be, in the words of James Alison, heterosexual but homosocial – he would socialise predominantly with other men, he would find intellectual companionship with them, he would speak frankly to them; that, in short, is where he would look for intimate friendship. And the converse was true for women. Occasions on which the sexes socialised together were comparatively few, and conducted with considerable formality.

That’s not to say that spouses were not expected to love one anther, but “love” was understood in a slightly different way. Love involved commitment, it involved self-sacrifice, it involved accepting responsibility, it involved taking risks and sharing destinies and fortunes; it involved a fundamental concern for the welfare of the beloved. But it didn’t necessarily involve intense and intimate friendship.

Once you introduce and accept the idea that in marriage you are looking for a “soulmate”, you weight marriage down with a heavy burden of expectation. It becomes much more difficult for marriage to match up to the ideal that you have adopted, and consequently you are less likely to perceive yourself to be satisfied in your marriage, and more likely to feel that you are letting yourself, and indeed your partner, down by “settling” for a marriage which fails to provide either of you what you think it should provide.

– Money. In the past, again, more or less two hundred years we’ve lived through a period of dramatic growth in prosperity, and also (in the west) of a conspicuous levelling of prosperity (which is to say, the growth in wealth has been widely shared). The result is that, in material terms, the option of separating, of running two households, of living independently, of starting a second family are now attainable for a far wider section of the population than ever before.

In short, for better or worse, we’ve acquired additional reasons to find ourselves dissatisfied with our marriages, and additional capacity to act on our dissatisfaction.

This is not wholly unconnected with the factors that you point to. The growing popularity of the notion of same-sex marriage, for instance, is clearly linked to the ideal of companionate marriage. And quite possibly the developments in canonical practice to which Gareth takes exception are similarly linked.

I’ve always understood your point of view, Gareth, I just don’t entirely agree with it. I know that many others are asking similar questions, and I think it is true to say that the Holy Father, in his own way, is urging the Tribunals to pull back on the “creative” application of Canon Law. I believe he sees the problem to be with this kind of application, not with the Law itself, and that’s where I stand too.

Well, have we any reason to think that the pope thinks annulments are being too freely and “creatively” granted? It is, after all, possible that the pope is dissatisfied with canonical outcomes or practice, but that his dissatisfaction does not coincide with ours.

No offence David but for some years now, the Pope(s) in their annual ‘talk’ to the Roman Rota has followed the same theme year in and year out, somewhere along the lines of that the liberal interpretation of canon law must stop.

And year in and year out we really don’t see any change in terms of consequences of what the Pope has said at the local Diocesan level.

It appears like so many things in the Church nowadays, there is a lot of talk on the issue and no real action.

The call to review or have a serious look at the new code of canon law in terms of its consequences on the permanency of marriage is at the very least something concrete, rather than cheap talk.

I also have a theory that the lack of willingness to take a look at the root of the problem stems from some of the old ducks in our Church
delusion about the fruits of Vatican II. After all the decisions of the Council guide the revision of ecclesiastical laws, and such a call
to review is symbolic that we as a Church have to admit to the actual evidence of the catastrophic fruits of the sketchy theology that has entered our Church since the 70s.

I sense amongst a growing number of people in the pews that they find fault with the ‘spirit of Vatican II’ per see, rather than some peoples line that it is simply a misinterpretation of the Council that is the issue.

Time for Vatican II adherents, perhaps even the Pope to eat some humble pie.

I am done with the topic.

We are going to have to agree to disagree, although on my part this is vehement

Well, it might hep us understand, Gareth, if you were to point out which canons you believe to be at fault. I don’t just want links to other people’s work. You tell me the number of the canon and the fault you find in it.

I was happy to leave it that as the continual going around in circles and refusal of others to take on board strong points being made is a bit tiresome, but seeing you issued the challenge:

Canon 1095 § 2 and 3 in particular which I believe touches on the the ‘psychological incapacity to fulfill the obligations of marriage’ has lead to a pletora of superficial motives to disolve marriages, many of which of been considered unacceptable in our Church of yesteryear.

This criteria alone ensure almost any defects or shortcomings of one spouse that do not meet our modern romantic expectations (something which the documents of Vatican II contributed to as Pere previously pointed out) of the other can be proffered as an any excuse to annul the bond of matrimony.

If those that are serious about arguing that the Catholic Church should have a strict and just cause to release the matrimony bond, then having a proper review of the above would be a great place to start.

Such a review would truly address the constructive concerns of those that ask the Church should practise what it preaches as it has done throughout its history when it says marriage is forever.

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About This Blog

SCE is a blog in "the Spirit of Benny 16". It is a place to discuss Catholic Theology, Ecumenism, Interfaith relations, History, Liturgy, Philosophy and whatever topics are hot in the ecclesiastical world!

I view the combox as the most important feature of this site, and I imagine our commentators sharing a glass of after dinner port as we discuss in a gentlemanly/ladylike manner the issues most dear to us.

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The Schütz Model for a Elective Australian Constitutional Monarchy

I propose that
1) We replace the absentee monarch of Australia (who is also the Monarch of Great Britain) with an elected Australian monarchy.
2) The elected monarch exactly replaces the current monarch in the current constition.
3) The elected monarch has exactly the same powers, duties and responsibilities as those of the current absentee monarch. All the monarch's functions are carried out by his/her personal representatives (as is currently the case): federally by the Governor General, and in the states by the State Governors.
4) The Governor General and the Governors continue to be selected and appointed as they currently are, that is, by the premier with the approval of the monarch.
5) The monarch is elected to sovereignty over Australia for life, but his/her sovereignty is strictly non-hereditary.
6) The elective body is the "college of electors" comprised of the state governors and federal governor general.
7) The election of the monarch must be a unanimous decision on the part of the college of electors.

"The fervant Romanists have always this point in their favour: that they are ready to believe. And they have a desire for the conversion of men which is honest in exactly inverse ration to the dishonesty of the means which they employ to produce it."-- Anthony Trollope, "The Way We Live Now"

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"The truth may be out there, but lies are inside your head."-- Terry Pratchet, Hogfather, page 242

"I really don't think I'm arrogant, but I do get impatient with people who don't share with me the same humility in front of the facts."--Richard Dawkins